COSTS ENDORSEMENT

papageorgiou j.

[1] The plaintiff, Michelle Kam (“Ms. Kam”) sued the defendants in respect of two publications she says contained defamatory statements. The publications in question focused on the operations of an illegal cannabis dispensary chain (Cannabis and Fine Edibles, commonly known as “CAFÉ”) that refused to adhere to regulations regarding the sale of cannabis. Although she is not the focus, these articles made reference to Ms. Kam.

[2] I granted the defendants, the Canadian Broadcasting Corporation (“CBC”), Zach Dubinsky (“Mr. Dubinsky”) and Lisa Mayor (“Ms. Mayor”) (collectively, the “Moving Parties”) motion to dismiss this action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), Ontario’s “anti-SLAPP” regime.

The Court’s discretion to order costs

[3] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26. Rule 57 sets out factors which Courts may have regard to in exercising this discretion.

The Moving Party’s costs request

Scale of Costs

[4] The Moving Parties seek costs on a full indemnity basis in the amount of $141,573.04, including $7,178.75 for disbursements and $16,229.29 in taxes.

[5] The Moving Parties refer to s.137.1(7) of the CJA, which provides as follows:

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to the costs on the motion and in the proceeding on a full indemnity basis unless the judge determines that such an award is not appropriate.

[6] The Moving Parties argue that the presumption set out above reflects the Legislature’s intent that defendants be encouraged to bring such motions. As the Law Commission of Ontario noted in Defamation Law in the Internet Age (Final Report) (Toronto: Law Commission of Ontario, 2020), at p. 52:

The legislation uses cost provisions to encourage defendants to make use of the new procedure. Where a defendant is successful in having a proceeding dismissed, there is a statutory presumption that she will be awarded her costs of the motion and the proceeding on a full indemnity basis. However, where a plaintiff is successful in defending her action, the presumption is the opposite—she will not be awarded costs on the motion. Both presumptions are subject to the judge’s discretion.

[7] While this may be the presumption, the plaintiff has provided a number of compelling reasons for a departure.

[8] First, I concluded that this action does not have the hallmarks of a SLAPP. The plaintiff is not a large and powerful entity using litigation to intimidate a smaller and more vulnerable opponent and silence her expression. In B.W. (Brad) v. Premier Doug Ford, 2021 ONSC 695, at paras. 2-4, Belobaba J. relied on precisely this reasoning in awarding partial rather than full indemnity costs in a s. 137.1 SLAPP motion.

[9] Second, I concluded that the plaintiff has established that there is substantial merit to her claim that three statements in the impugned publications were capable of the defamatory meanings alleged. A reasonable reader would understand them in the defamatory sense that she is involved in the illegal activities carried on by CAFÉ (as pleaded in para.18 of the Claim), and that this would lower her reputation in the minds of right thinking persons.

[10] Third, I concluded that the plaintiff had provided evidence which demonstrates that she likely has or will have suffered harm as a result of the Statements in question, both monetary and non-monetary.

[11] The plaintiff points out that had she been able to establish that the defence of responsible communication could not be made out, she would have succeeded on the motion.

[12] Finally, the plaintiff refers to the procedural history of this matter and the fact that when she responded to the Moving Parties’ proceedings, the Moving Parties were proceeding with a summary judgment motion as an alternative relief pursuant to its Amended Notice of Motion dated April 2020. After it filed this Amended Notice, the Moving Parties filed four affidavits and over 700 pages of motion materials.

[13] The plaintiff then responded with her Responding Motion Record dated June 15, 2020 which contained plaintiff’s sworn affidavit dated June 15, 2020. She also served her supplementary affidavit sworn July 17, 2020. The plaintiff points out that her record contained roughly 400 pages of material (approximately 57 percent of the volume filed by the Moving Parties). Cross-examinations occurred during the summer of 2020.

[14] Then, on October 30, 2020, the defendant sent a letter to plaintiff’s counsel indicating that they were withdrawing the summary judgment prayer for relief. At this point, examinations were complete and the parties were preparing for the motion hearing.

[15] While the Moving Parties complain about the steps taken by the plaintiff which they say complicated this proceeding, the plaintiff was in the position of having to put her best foot forward to address the Moving Parties’ summary judgment motion. This is not the same thing as having to respond to a screening motion pursuant to s. 137.1 and I agree.

[16] It is true that the volume of material was significant but this was driven at least in part by the fact that the Moving Parties prepared this motion requesting as a summary judgment motion. The plaintiff was responding to both an anti-SLAPP motion and a summary judgment motion where the burden on the plaintiff was much higher than the burden she faced on the anti-SLAPP motion.

[17] In my view, there are substantial reasons to depart from the presumption and it is appropriate to do so for the reasons set out above. In my view, the appropriate scale of costs is on a partial indemnity basis.

The Quantum

[18] The Moving Parties have only provided a Bill of Costs which sets out its costs claim on a full indemnity basis. They have not provided any information on what their costs claim would be on any other scale. The plaintiff has provided her Bill of Costs which sets out that her full indemnity costs are $101,096.75 compared to the Moving Parties full indemnity costs claim of $141,573.04. The plaintiff’s partial indemnity costs are $55,603.21. The plaintiff argues that her reasonable expectations in terms of costs are reflected in the costs which she incurred.

[19] The plaintiff also points to evidence of duplication and “overlawyering” by the Moving Parties. The Bill of Costs submitted shows that at one point in the litigation there were six different lawyers working on the file. For the entirety of the cross-examinations and the second full day of the motion hearing, two lawyers attended on behalf of the Moving Parties. By contrast, Mr. Stienburg was the sole lawyer acting on behalf of the plaintiff throughout the litigation.

[20] Although the plaintiff brought several interlocutory motions, she asserts that these were necessary. She was successful in the sealing motion which was not appealed. I found in favour of the plaintiff on her fresh evidence motion which was vigorously disputed by the Moving Parties with a 39-page motion record and a 14-page factum.

[21] In all the circumstances, and in particular because I do not even have from the Moving Parties what their partial indemnity costs would be, I am awarding the Moving Parties $55,603.21 which represents the plaintiff’s partial indemnity costs. In my view, these are fair and reasonable and within the reasonable contemplation of the parties.

Papageorgiou J.

Released: April 6, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE KAM

Responding Party/Plaintiff

– and –

CANADIAN BROADCAST CORPORATION, ZACH DUBINSKY and LISA MAYOR

Moving Parties/Defendants

COSTS DECISION

Papageorgiou J.

Released: April 6, 2021

Kam v. CBC, 2021 ONSC 2537

Case Summary

COSTS ENDORSEMENT

The Court’s discretion to order costs

The Moving Party’s costs request

Scale of Costs

The Quantum

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legislation 2